(1.) THIS is an appeal from jail filed on behalf of two persons, Akeila Sheikh and Moslem Sheikh both of whom were convicted under Section 396, Penal Code, and sentenced to transportation for life and rigorous imprisonment for ten years respectively. The enhanced sentence was passed against Akeila Sheikh due to his having previous conviction under Section 395, Penal Code.
(2.) THE prosecution case is that there was a dacoity in the house of one Sikandar Sheikh of village Chuapata on the night of 24 -5 -1950 or strictly speaking at about 1 a.m. on 25 -5 -1950 in the course of which persons numbering about twelve to twenty -five surrounded the house of Sikandar who was one of the well -to -do villagers. Four persons made an entry into the house by forcing open the door and attacked Sikandar who freed himself from their clutches and took a spear to avenge the intruders. The dacoits immediately came out and some one from amongst the dacoits fired a gun at Sikandar injuring him on his left thigh when he fell to the ground profusely bleeding. The dacoits entered the house again and prevailed upon the injured man to point out where his money was whereupon Sikandar pointed to a box on the ceiling of the house which the dacoits brought down and broke open. The contents of the box were ransacked including Rs. 1,200/ - in cash and some ornaments. The dacoits then left the house of Sikandar and some of them entered the house of Sobhan, son of Sikandar living in a separate house. Only an umbrella and a wrapper were removed from that house and the dacoits attempted to remove the gold -nose -ring from the person of Sobhan's wife which failed. Sobhan and some of their neighbours approached Sikandar Sheikh soon after the dacoits left and he told his son and the persons who assembled by his side that he was able to recognise four persons amongst the dacoits and they were Moslem Sheikh, Akeila Sheikh, Bisa Sheikh and Rustom Ali. The same story was repeated when Sikandar's brother Mohammad Ali Munshi came to him after the occurrence.
(3.) WITH regard to the first point raised by Mr. Ghose, it has been clearly placed before the jury by the learned Additional Sessions Judge that as a matter of fact, the only evidence against this accused Akeila was the statement of recognition made by Sikandar Sheikh. That Sikandar made a statement to that effect is corroborated by several persons including his son Sobhan and Sikandar's two wives, Amiron Bibi and Faiziri Bibi, who were actually present inside the house at the time of the commission of the dacoity. Some of the neighbours of Sikandar also support the story. The statement that was made before the doctor in charge of the Bilasipara Dispensary has also been proved as a dying declaration alleged to be made by Sikandar. The doctor himself has been examined by prosecution to prove the statement and nothing has been suggested against him as to why he should have made a false document implicating these or any of the accused persona. It is admitted that accused Akeila lived in the village of Nayeralga and that was the village recorded against the name of Akeila, the person who was implicated by Sikandar before the doctor. In case of two of the accused persons, Bisa and Rostum, there were some other persons bearing the same name in their village, but in case of Akeila no such suggestion was made. The learned Additional Sessions Judge summarised his observation to the jury about this accused by saying :